Minister of Police and Another v Kgopa and Another (JR76/13) [2016] ZALCJHB 194 (19 May 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JR76/13

DATE: 19 MAY 2016

Reportable

In the matter between:

THE MINISTER OF POLICE.......................................................................................First Applicant

NATIONAL COMMISSIONER OF POLICE..........................................................Second Applicant

And

MM KGOPA.................................................................................................................First Respondent

LT COLONEL DE LANGE.....................................................................................Second Respondent

Heard: 10 November 2015

Delivered: 19 May 2016

Summary: Application by the State to review and set aside a decision granting absolution from the instance in a disciplinary hearing. Although the decision is manifestly wrong in law there is no basis for the State to review its own functionary in terms of section 158(1)(g) or (h).

EVERETT, AJ

Introduction

[1] This is an unopposed application for review in terms of section 158(1)(g) or (h). The applicants seek to review and set aside a decision made by the chairperson of a disciplinary hearing, the second respondent, to grant absolution from the instance.

Background

[2] The matter dates back to May 2012. The applicant employer alleged that the first respondent, a police officer, demanded R1, 500.00 from a member of the public to investigate a case of alleged fraud. It seems that the complainant member of the public did not have clean hands and was involved in a deal to buy stolen platinum and he demanded be investigated when it went sour. Be that as it may, the member of the public made payment of R1200.00 but the first respondent demanded the remaining R300.00. The member of the public then reported the matter to the South African Police Services (SAPS).

[3] The SAPS held and internal disciplinary hearing and appointed the second respondent to chair. The first respondent police officer was charged and pleaded not guilty to four charges, including corruption. Instead, in putting his version to the witnesses, he claimed that the money paid into his account was in repayment of a loan.

[4] At the end of the employer’s case, the applicant applied for absolution from the instance and it was granted. The chairperson

granted absolution from the instance for a number of reasons, including the following:

- The Captain investigating the case did not make a good impression; that he trusted the complaining member of the public who was himself an opportunist involved in a deal to buy stolen platinum;

- This was effectively a case of a single witness; and

- Proof is on the balance of probabilities and there was not enough evidence to balance the applicant’s evidence and the employer

could not call the first respondent to testify so that it could “get more balance”.

The applicant’s grounds for review

[5] The applicants claim that the decision should be reviewed and set aside as it is

- wrong in law; and/or

- it was based on a misinterpretation of the legal requirements for granting absolution from the instance; and/or

- the second respondent was biased in favour of the first respondent in his decision.

Evaluation

[6] This case is, quite frankly, absurd. The decision of the chairperson was manifestly wrong in law. The whole point of a disciplinary

hearing is to give the employee an opportunity to respond to the allegations against him or her. Only then does the chair weigh the versions and decide, on the balance of probabilities, whether a workplace rule was broken, whether the employee was aware of the rule, whether it was consistently applied and whether dismissal is the appropriate sanction for breach of the rule.[1] In this matter, the chairperson decided the probabilities without hearing the applicant’s response to the allegations.

[7] That the decision of the chairperson was manifestly wrong in law does not lead, automatically, to the setting aside of that decision. It must be possible to review the second respondent’s conduct in terms of the Labour Relations Act 66 of 1995 (the LRA).

[8] Section 158(1)(g) provides for the review of “any function provided for in this Act”. A disciplinary inquiry - other than an inquiry by arbitrator provided for in terms of section 188A - is strictly not a function provided for in this Act. And if it were it would result in the outrageous situation that the conduct of employers or chairpersons might be taken directly on review in the Labour Court, bypassing the conciliation and arbitration provisions of the LRA.

[9] Section 158(1)(h) provides for the review of “any decision taken or any act performed by the State in its capacity as employer”. This provision exists to ensure fair treatment by the State towards its employees and to avoid the abuse of State power. It does not exist to provide the State with an opportunity to review the functions of its own functionaries who, when they perform their functions, do so on behalf of the State. The State’s attempt to review the chairperson it appointed for bias in favour of the first respondent, is similarly absurd.

[10] Absolution from the instance is simply not appropriate in the context of disciplinary enquiries, just as it is not appropriate in arbitration processes. See Minister of Safety and Security v Madisha[2] The chairperson’s ruling is an example of an overly technical, legalistic approach being applied in disciplinary hearings which was never the purpose of the LRA.[3] The state seeking to review the actions of its own functionary is the bizarre result. It is akin to the CCMA seeking to review its own commissioner in terms of section 158(1)(g) or (h). It is simply not possible.

[10] One might ask: what remedy does an employer have if it disagrees with the decision of the chairperson? This has been dealt with in a number of cases where the employer has failed to implement the decision of the chairperson and/or over-ruled it. The answer may lie in ensuring that chairpersons are well trained and equipped to deal with disciplinary matters while at the same time refraining from an overly technical approach. But the answer is not for the employer to attempt to review the chairperson’s decision.

[11] For the above reasons there is no basis on which to review and set aside the chairperson’s conduct.

Order

[12] The application is dismissed.

Everett AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: S.M Malatji

Instructed by: State Attorney

For the Respondent: No Appearance

Instructed by:

[1] See Code of Good Practice: Dismissal, Schedule 8 of the LRA.

[2] [2009] 1 BLLR 80 (LC).

[3] See Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration and Others (2006) 27 ILJ 1644 (LC)